JUDGMENT OF 28. 10.

1975 CASE 36/75

2. The concept of public policy must, in the Community context, and where, in particular, it is used as a justification for derogating from the fundamental principles of equality of
treatment and freedom of movement

These limitations and safeguards arise, in particular, from the duty imposed
on Member States to base the

for workers, be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community. 3. Restrictions cannot be imposed on the right of a national of any Member State to enter the territory of another Member State, to stay there and to move within it unless his presence or conduct constitutes a genuine and sufficiently serious threat to public policy. 4. An appraisal as to whether measures designed to safeguard public policy are justified must have regard to all rules of Community law the object of
which is, on the one hand, to limit

measures adopted exclusively on the personal conduct of the individuals concerned, to refrain from adopting any measures in this respect which
service ends unrelated to the

requirements of public policy or which adversely affect the exercise of trade union rights and, finally, unless this is contrary to the interests of the security of the State involved, immediately to inform any person against whom a restrictive measure has been adopted of the grounds on
which the decision taken is based to enable him to make effective use of

legal remedies. 5. Measures restricting the right of residence which are limited to part only of the national territory may not be imposed by a Member State on
nationals of other Member States who

the discretionary power of Member States in this respect and, on the other, to ensure that the rights of persons subject thereunder to restrictive measures are protected.

are subject to the provisions of the Treaty except in the cases and
circumstances in which such measures

may be applied to nationals of the

State concerned.

In Case 36/75

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal administratif, Paris, for a preliminary ruling in the action pending before that
court between

Roland Rutili, residing at Gennevilliers,

and

The Minister for the Interior

on the interpretation of Article 48 of the EEC Treaty

1220

RUTILI v MINISTER FOR THE INTERIOR

THE COURT

composed of: R. Lecourt, President, H. Kutscher, President of Chamber, A. M. Donner, J. Mertens de Wilmars, P. Pescatore, M. Srensen and A. J. Mackenzie Stuart, Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following:

JUDGMENT

Facts

The facts of the case, the procedure and

the observations submitted under Article 20 of the Protocol on the Statute of the

affecting Mr Rutili and, on the same date,

informed the Prefect of the Moselle of

Court of Justice of the EEC may be

summarized as follows:

his decision to prohibit Mr Rutili from residing in the departments of Moselle, Meurthe-et-Moselle, Meuse and Vosges.
On 17 January 1970 Mr Rutili applied for the grant of a residence permit for a
national of a Member State of the EEC.

I Facts and written procedure

Mr Roland Rutili, of Italian nationality, was bom on 27 April 1940 in Loudun (Vienne), and has been resident in France

On 9 July 1970 he appealed to the

Tribunal administratif, Paris, against the implied decision refusing him this
document.

since

his birth; he

is

married

to

Frenchwoman and was, until 1968, the

holder of a privileged resident's permit

and domiciled at Audun-le-Tiche (in the

department of Meurthe-et-Moselle), where he worked and engaged in trade

union activities.

On

23

October

1970,

the

Prefect

of

Police, acting on instructions given by the Minister for the Interior on 17 July, granted Mr Rutili a residence permit for
a national of a Member State of the EEC,
which was valid until 22 October 1975

On 12 August 1968, the Ministry for the Interior made a deportation order against
him.

On 10 September 1968 an order was issued requiring him to reside in the department of Puy-de-Dme.
By orders of
Minister for

but subject to a prohibition on residence in the departments of Moselle, Meurthe-et-Moselle, Meuse and Vosges.
On 16 December 1970, Mr Rutili

19
the

November
Interior

1968

the
the

brought proceedings before the Tribunal

administratif, Paris, for annulment of the

revoked

deportation

and

residence

orders

decision limiting the territorial validity of his residence permit.

1221

JUDGMENT OF 28. 10. 1975 CASE 36/75

During
Tribunal

the

proceedings

before
it

the

Advocate-General, the Court decided to

administratif,

became

apparent that Mr Rutili's presence in the

departments of Lorraine was considered by the Minister for the Interior to be

open the oral procedure without any preparatory inquiry.

On 2 September 1975, the Government of the French Republic supplied to the Court at the request of the latter certain details of the substantive and procedural conditions in which a prohibition on

'likely to disturb public policy' and that there were complaints against him in
respect of certain activities, the truth of
which is, however, contested, which are

alleged to consist, in essence, in political actions during the parliamentary

elections in March 1967 and the events

residence in part of the national territory

may be issued against a French national.

of May and June 1968 and in his participation in a demonstration during the celebrations on 14 July 1968 at
Audun-le-Tiche.

II

Written

observations

sub

mitted to the Court

By judgment of 16 December 1974, the

Tribunal administratif, Paris, decided to

A The first question

The Government of the French Republic takes the view that this question is
answered by Council Directive No

stay proceedings under Article 177 of the EEC Treaty until the Court of Justice had given a preliminary ruling on the following questions:
1. Does the expression, subject to

limitations

of public policy', employed in Article 48

justified

on

grounds

of the Treaty establishing the EEC concern merely the legislative

decisions which each Member State of the EEC has decided to take in order

to

limit

within

its

territory

the

freedom of movement and residence

for nationals of other Member States

or does it also concern individual

64/221 of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117), which lays down the conditions on which measures based on those grounds may be taken against individuals; in particular, Article 3 (1) thereof provides

as follows: 'Measures taken on grounds of

public policy or of public security shall be based exclusively on the personal
conduct of the individual concerned.'

decisions taken in application of such legislative decisions?

2. what is the precise meaning to be

attributed to the word 'justified'?

The decision of the Tribunal adminis

This is the directive expressly referred to

in the third recital of the preamble to

Council
October

Directive
1968 on

No
the

68/360

of

15
of

abolition

tratif,

Paris

was

entered

at

the

Court

restrictions on movement and residence

Registry on 9 April 1975.

Written observations under Article 20 of the Protocol on the Statute of the Court

within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II) p. 485),
cited in the decision of the Tribunal

of Justice of the EEC were submitted on 16 June 1975 by the Commission of the

Administratif, Paris.

European Communities, on 20 June by the Government of the French Republic and on 26 June by the Government of the Italian Republic.
After hearing the report of the Judge-Rapporteur and the views of the
1222

The Government of the Italian Republic considers it desirable that regulations of a general and abstract nature adopted in
the Member States of the EEC should

specify

the grounds

of

public

policy

which, on the basis of uniform criteria

RUTILI v MINISTER FOR THE INTERIOR

throughout the Community, are capable of limiting the rights arising under Article 48 of the EEC Treaty; this would substantially reduce the discretionary
character of an individual decision taken

that it is doubtful whether the immediate

by

the

administration

which

applies

abstract regulations to a particular case.

In the present state of Community law, however, limitations on the right of freedom of movement may arise from
individual administrative measures but

measure of a prohibition on residence in certain regions only of the national territory may be applied. Moreover, the fact that the measure imposed is not one of deportation but a partial prohibition on residence may enable the conclusion to be drawn that the conduct which gave rise to the penalty is not of the particularly serious nature required by Community regulations.

appraisal of the grounds of public policy must, in each particular case, be made in the light of the Community regulations which have been promulgated for the very purpose of restricting this discretionary power in view of the objectives embodied in Article 48. On the question whether an individual administrative measure may decide to prohibit residence in certain regions of a State only, it must be stated that although Article 6 (1) (a) of Directive No 68/360 provides that the residence permit of a national of a Member State of the EEC must be valid throughout the territory of the State which issued it,
Article 10 of the same directive allows

The answer

Commission
takes

of
the

the
view

European
that an

Communities

in

the

affirmative,

though

accompanied by certain details, should be given to the question whether the reservation made concerning public policy in Article 48 (3) of the EEC Treaty
also covers individual decisions

implementing legislative decisions taken by a Member State in order to restrict the

freedom of movement and residence on

its territory of the nationals of Member

States.

Member States to derogate from its provisions on grounds of public policy, public security or public health. It would, therefore, appear that a decision prohibiting residence in certain parts of the national territory may be justified on grounds of public policy. However, it follows from the judgment of the Court of Justice of 26 February 1975 in Case 67/74 (Bonsignore v Stadt Kln [1975] ECR 297; reference for a preliminary ruling by the Verwaltungs gericht Kln) that derogations from the rules concerning the free movement of persons constitute exceptions which must be strictly construed; personal conduct capable of justifying such departures must, accordingly, be of a particularly serious nature. In these circumstances, the view may be taken that Community law does not permit

(a) The wide discretion traditionally enjoyed by the immigration authorities is limited by Directive No 64/221, the object of which is to restrict the actions of national authorities by means both of provisions covering matters of substance (Articles 2, 3 and 4) and by procedural provisions (Articles 5 to 9). Some provisions of Community law concerning the reservation on public policy, in particular Article 48 of the Treaty and Article 3 (1) of Directive No 64/221, are directly applicable in the legal systems of
the Member States. Thus, the

discretionary
administrative

powers

of

the
are

national
circum

authorities

scribed not only within the limits fixed by the rules of national law, supplemented as necessary by the incorporation into domestic law of the rules which appear in the directive, but also within the limits fixed by the

directly

applicable

provisions

of

the

Community directive. (b) These limits are of decisive concern precisely when individual decisions are
1223

grading of the seriousness of conduct penalized by administrative measures and

JUDGMENT OF 28. 10. 1975 CASE 36/75

taken, as the directive requires each case to be examined individually.

principle of freedom of movement for

workers in a case where such a national

(c) The expression, 'subject to limi tations justified on grounds of public policy', used in Article 48 (3) of the EEC Treaty is, therefore, primarily concerned with individual decisions taken against foreigners who are nationals of a Member
State of the EEC.

proposes to take up a particular offer of employment even though the Member State does not place a similar restriction

upon its own nationals.'

The Government of the Italian Republic considers that, particularly in view of
Article
that

of

Directive
must be

No
an

64/221,

the

term 'justified' in the first place means

there exhaustive

B The second question

The Government of the French Republic takes the view that the precise meaning to be given to the word 'justified' in the expression 'subject to limitations justified on grounds of public policy' in Article 48 of the EEC Treaty follows from the judgment of the Court of 4 December 1974 in Case 41/74 (van Duyn v Home Office; a reference for a preliminary ruling from the Chancery Division of the High Court of Justice, [1974] ECR 1337). In its judgment, the Court ruled, inter
alia, that

explanation of the reasons for measures which, on grounds of public policy, limit the rights secured by Article 48 of the Treaty, and that this seems manifestly
not to have been done in the case of the decision contested in the main action.

Nor

is

it

possible
or reasons

to
for

tell
that

from

the

statement

decision

whether, in this particular case, the principle laid down in Article 3 (1) of
Directive No 64/21 was observed, and in

' the concept of public policy in the context of the Community and where, in particular, it is used as a justification for

particular whether the contested measure is concerned only with threats to public policy and public security on the part of the person who is the subject thereof, or whether it was adopted for the unlawful purpose of deterring other foreigners.
Furthermore, limitations on the freedom

derogating from the fundamental principle of freedom of movement for

workers, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State

without being subject to control by the institutions of the Community. Nevertheless, the particular circum stances justifying recourse to the concept of public policy may vary from one country to another and from one period to another, and it is therefore necessary in this matter to allow the competent
national authorities an area of discretion

of movement cannot be regarded as justified under Community law if they are imposed without guaranteeing the rights of appeal for those concerned under the terms laid down by Articles 8
and 9 of Directive No 64/221.

Finally, the
workers'

limitations
of

imposed upon
movement on

freedom

within the limits imposed by the Treaty';

and that

grounds of public policy and countenanced, exceptionally, under Article 48 (3) of the Treaty, may be regarded as justified if they fulfil the substantive and formal requirements prescribed by Directive No 64/221
which, in accordance with the case-law of

'It

follows

that

Member

State,

for

the Court, restrictively.

must

be

interpreted

deems

reasons of public policy, can, where it necessary, refuse a national of

another Member State the benefit of the

According to the Commission of the European Communities, an appraisal of

1224

RUTILI v MINISTER FOR THE INTERIOR

the precise meaning to be given to the

word 'justified' may be based on three

viewpoints: (a) The measure must first of all be

The concept of public policy must, therefore, be resorted to only in particularly serious cases.
In the Member States of the

justified in the sense that the decision by which it is adopted against the person
concerned must be reasoned.

Community, fundamental human rights, the 'public freedoms', are established and recognized by the State. National
statutory law lays down the basic rules for each of these freedoms and prescribes
their limits both to enable them to be

As the measure may only be based on adequate grounds and refer exclusively to the personal conduct of the individual concerned, these grounds must be explained to him, especially to enable him to make use of the legal remedies
which, under Articles 8 and 9 of Directive No 64/221, the Member States
must make available shall be to him. Under of the

exercised simultaneously and to protect society. These limitations form a basic criterion for determining at what point an activity may be regarded as

constituting 'a danger to society'. Thus,

an activity which consists of the legitimate exercise of a freedom enjoyed by the public and recognized as such by national law can scarecely be considered to affect adversely the public policy of a State because the person responsible for it is a foreigner. In fields involving the exercise by the public of its freedoms, an appraisal whether a foreigner has acted contrary to public policy must be made by reference not only to the national rules of a host State which recognizes its own citizens as being entitled to those freedoms, but also of the relevant international obligations
into which the State has entered.

Article 6 of the Directive: The person

concerned informed

grounds of public policy, public security or public health upon which the decision
taken in his case is based, unless this is

contrary to the interests of the security of

the State involved.' In the present case, it

is for the Court dealing with the
substance of the case to assess whether

the grounds are, in this sense, really 'justified'.

(b) With regard to the meaning of the concept of public policy which is capable of justifying measures taken against a foreigner, in view in particular of
Directive No 64/221, the case-law of the

Court and the viewpoint of the French Minister for the Interior, the following
considerations must be borne in mind:

The right to enter the territory of

Member States and to reside there is an

The exercise of trade union rights by a foreigner, under the same conditions as a national, cannot be regarded as in itself constituting an offence against public policy. The exercise of trade union rights was recognized by Article 8 of Regulation No 1612/68 of the Council of
15 October for 1968 on freedom within of the movement workers

indispensable

element

of

the

free

movement of persons, which is itself one

of the underlying principles of the Community. The exercise of this right of entry and of residence, enshrined in Article 48 of the EEC Treaty, is subject
to no reservations except those provided

Community (OJ, English Special Edition

1968 (II) p. 475) and embodied in several international documents. Such recog nition enables foreigners, without
discrimination based on national descent

for by way of limitation in paragraph (3) of the article, which refer to public policy, public security or public health; since it is an exception, it must be restrictively interpreted.

or origin, to make full use of collective bargaining rights including, in particular, the right to take collective action in case of dispute, and the right to strike. The exercise of trade union rights is subject
1225

JUDGMENT OF 28. 10. 1975 CASE 36/75

to certain limitations laid down law and which, in a democratic are necessary to ensure respect rights and liberties of others

by the society, for the and to

embodying, in administrative terms, the

right

of residence

recognized

by

the

safeguard public order, national security, public health and morals. In this
connexion, it must be borne in mind

directive, must, in principle, be valid throughout the territory of the State which issued it. It is open to question
whether the French authorities were

that the concept of political neutrality, which applies particularly to foreigners,

must be handled with care in the context

entitled to limit the scope of that Community provision by providing, in the Decree of 5 January 1970, that 'a residence permit for a national of a
Member State of the EEC shall be valid

of a Community which is trying to integrate the migrant worker more and more closely into the host country and which likes to emphasize its political
aims. The host state can no doubt

throughout French territory save in the case of an individual decision taken by the Minister for the Interior on grounds

of public policy.'
An order as to place of residence may nevertheless be made against a foreigner in certain circumstances where special restrictions on foreigners appear to be in fact justifiable on grounds of public

impose restrictions on the political activity of foreigners; at the same time, political neutrality must on no account be used to prevent the normal exercise of legitimate economic and social rights which are enshrined in Community law.
(c) On the question whether the measure adopted is justified in the present case, the following comments may be made: Directive No 64/221 expressly refers to refusal of entry into a territory and expulsion from a territory as special measures which may be taken against a
national of a Member State; on the other

policy. But it must be possible, in each

individual case, to justify the application to a foreigner of the general rule laid down in the Decree of 5 January 1970. In the present case, however, the measure contested in the main action appears to be discriminatory or unfounded. Finally, refusal of a residence permit
may have very serious consequences for

hand,

it

contains

no

provision

that

the person concerned and also for his family.

(d) In conclusion, in order to be 'justified' within the meaning of Article 48 (3) of the EEC Treaty, a measure affecting an individual must: in accordance with the provisions of
Articles 8 and 9 of Directive No 64/221,

prohibitions on residence in part of the territory may be justified on grounds of public policy. One might, at first, be tempted to
conclude that, as the administrative

authorities are justified in adopting a deportation measure against a foreigner, they may a fortiori adopt a less drastic
measure, and that it would be to

state the grounds on which it is based;

encourage them in every case to opt for deportation if they were prohibited from adopting a less radical measure. Nevertheless, the right to move freely
within a State and to choose to reside

be based on particularly serious grounds, especially when the activity for

which the national of a Member State is

criticized is the result of exercising a freedom expressly recognized by the

State in which he resides or a

there is a basic human right; thus, Article 6 (1) (a) of Directive No 68/360 provides that a residence permit, which is a

fundamental

right

enshrined

in

an

international document; the exercise of

trade union freedom cannot constitute an

straightforward entitlement to residence

1226

offence against public order or public

RUTILI v MINISTER FOR THE INTERIOR

security within the meaning of Article 48 (3) if it takes a form which is considered
lawful in the case of nationals;
in view of the restriction on freedom

Communities, represented by its Legal Adviser, Jean-Claude Sch, submitted their oral observations at the hearing on
1 October 1975.

of movement which it involves and the

consequences which it entails for the person concerned and members of his family, in each particular case be calculated to meet the specific threat to public order posed by the person
concerned.

During the hearing, the plaintiff in the

main
action claimed
that the decision

limiting the territorial validity of his residence permit is, both from the standpoint of French law and of Community law, wholly without legal

III Oral procedure Mr Rutili, the plaintiff in the main action, represented by Marcel Manville,
Advocate of the Paris Bar, and the

justification; from the standpoint of Community law, more particularly, it is an infringement of the fundamental right
of freedom of movement and of the

principle of non-discrimination.
The Advocate-General delivered his

Commission

of

the

European

opinion on 14 October 1975.

Law

By a decision of 16 December 1974, received at the Court Registry on 9 April 1975, the Tribunal administratif, Paris, has referred to the Court two questions under Article 177 of the EEC Treaty concerning the interpretation of the reservation made in respect of public policy in Article 48 of the EEC Treaty in the light of the measures taken for implementation of that article, especially Regulation No 1612/68 of the Council of 15 October 1968 and
Council Directive No 68/360 of the same date, on freedom of movement for

workers (OJ English Special Edition 1968 (II) pp. 475 and 485).

These questions were raised in the course of proceedings brought by an Italian national residing in the French Republic against a decision to grant him a residence permit for a national of a Member State of the EEC subject to a prohibition on residence in certain French departments.

The file of the Tribunal administratif and the oral procedure before the Court have established that the plaintiff in the main action was, in 1968, the subject first of all of a deportation order and then of an order directing him to reside in a particular department.
1227

JUDGMENT OF 28. 10. 1975 CASE 36/75

On 23 October 1970 this measure was replaced by a prohibition on residence in four departments including the department in which the person concerned was habitually resident and where his family continues to reside.

It is also clear from the file on the case and from information supplied to the Court that the reasons for the measures taken against the plaintiff in the main action were disclosed to him in general terms during the proceedings brought before the Tribunal administratif on a date subsequent to the commencement of the action, namely, 16 December 1970.

From information given to the Tribunal administratif by the Ministry for the Interior, which, however, is contested by the plaintiff in the main action, it transpires that his political and trade union activities during 1967 and 1968 are the subject of complaint and that his presence in the departments covered by the decision is for this reason regarded as 'likely to disturb public policy'.

In order to resolve the questions of Community law raised during the proceedings concerning the principles of freedom of movement and equality
of treatment for workers of the Member States, the Tribunal administratif

referred two questions to the Court for the purpose of ascertaining the precise meaning of the reservation regarding public policy contained in Article 48 of the Treaty.

First question
8

The first question asks whether the expression 'subject to limitations justified

on grounds of public policy' in Article 48 of the Treaty concerns only the

legislative decisions which each Member State has decided to take in order to limit within its territory the freedom of movement and residence for nationals
of other Member States or whether it also concerns individual decisions taken

in application of such legislative provisions.

Under Article 48 (1), freedom of movement for workers is to be secured within the Community.

10

Under Article 48 (2), such freedom of movement is to entail the abolition of any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment.
1228

RUTILI v MINISTER FOR THE INTERIOR

11

Under Article 48 (3), it is to entail the right for workers to move freely within the territory of Member States, to stay there for the purpose of employment and to remain there when employment has ceased.

12

Subject to any special provisions in the Treaty, Article 7 thereof contains a general prohibition, within the field of application of the Treaty, on any discrimination on grounds of nationality.

13

Nevertheless, under Article 48 (3), freedom of movement for workers, in particular their freedom to move within the territory of Member States, may be restricted by limitations justified on grounds of public policy, public security or public health.

14

Various implementing measures have been taken for the purpose of putting the above-mentioned provisions into effect, in particular Regulation No
1612/68
workers.

and Council Directive No 68/360 on freedom of movement for

15

The reservation concerning public policy was laid down in Council Directive No 64/221 of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117).

16

The effect of all these provisions, without exception, is to impose duties on Member States and it is, accordingly, for the courts to give the rules of Community law which may be pleaded before them precedence over the provisions of national law if legislative measures adopted by a Member State in order to limit within its territory freedom of movement or residence for nationals of other Member States prove to be incompatible with any of those
duties.

17

Inasmuch as legislation is protection, it decisions are

the object of the provisions of the Treaty and of secondary to regulate the situation of individuals and to ensure their is also for the national courts to examine whether individual compatible with the relevant provisions of Community law.
1229

JUDGMENT OF 28. 10. 1975 CASE 36/75

18

This applies not only to the rules prohibiting discrimination and those concerning freedom of movement enshrined in Articles 7 and 48 of the Treaty and in Regulation No 1612/68, but also to the provisions of Directive No 64/221, which are intended both to define the scope of the reservation concerning public policy and to ensure certain minimal procedural safeguards for persons who are the subject of measures restricting their freedom of movement or their right of residence.

19

This conclusion is based in equal measure on due respect for the rights of the nationals of Member States, which are directly conferred by the Treaty and by Regulation No 1612/68, and the express provision in Article 3 of Directive No 64/221 which requires that measures taken on grounds of public policy or of public security 'shall be based exclusively on the personal conduct of the
individual concerned'.

20

It is all the more necessary to adopt this view of the matter inasmuch as national legislation concerned with the protection of public policy and security usually reserves to the national authorities discretionary powers which might well escape all judicial review if the courts were unable to extend their consideration to individual decisions taken pursuant to the reservation contained in Article 48 (3) of the Treaty.

21

The reply to the question referred to the Court must therefore be that the expression 'subject to limitations justified on grounds of public policy' in Article 48 concerns not only the legislative provisions which each Member State has adopted to limit within its territory freedom of movement and
residence for nationals of other Member States but concerns also individual

decisions taken in application of such legislative provisions.

Second question

22

The second question asks what is the precise meaning to be attributed to the

word 'justified' in the phrase 'subject to limitations justified on grounds of public policy' in Article 48 (3) of the Treaty.

23

In that provision, the words 'limitations justified' mean that only limitations which fulfil the requirements of the law, including those contained in
1230

RUTILI v MINISTER FOR THE INTERIOR

Community law, are permissible with regard, in particular, to the right of

nationals of Member States to freedom of movement and residence.

24

In this context, regard must be had both to the rules of substantive law and to the formal or procedural rules subject to which Member States exercise the powers reserved under Article 48 (3) in respect of public policy and public security.

25

In addition, consideration must be given to the particular issues raised in relation to Community law by the nature of the measure complained of before the Tribunal Administratif in that it consists in a prohibition on residence limited to part of the national territory.

Justification of measures adopted on grounds of public policy from the point of view of substantive law
26
By virtue of the reservation contained in Article 48 (3), Member States continue to be, in principle, free to determine the requirements of public policy in the light of their national needs.

27

Nevertheless, the concept of public policy must, in the Community context and where, in particular, it is used as a justification for derogating from the fundamental principles of equality of treatment and freedom of movement for workers, be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community.

28

Accordingly, restrictions cannot be imposed on the right of a national of any Member State to enter the territory of another Member State, to stay there and to move within it unless his presence or conduct constitutes a genuine and sufficiently serious threat to public policy.

29

In this connexion Article 3 of Directive No 64/221 imposes on Member States the duty to base their decision on the individual circumstances of any person under the protection of Community law and not on general
considerations.

1231

JUDGMENT OF 28. 10. 1975 CASE 36/75

30

Moreover, Article 2 of the same directive provides that grounds of public policy shall not be put to improper use by being 'invoked to service economic
ends'.

31

Nor, under Article 8 of Regulation No 1612/68, which ensures equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, may the reservation relating to public policy be invoked on grounds arising from the exercise of those rights.

32

Taken as a whole, these limitations placed on the powers of Member States in respect of control of aliens are a specific manifestation of the more general principle, enshrined in Articles 8, 9, 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and ratified by all the Member States, and in Article 2 of Protocol No 4 of the same Convention, signed in Strasbourg on 16 September 1963, which provide, in identical terms, that no restrictions in the interests of national security or public safety shall be placed on the rights secured by the above-quoted articles other than such as are necessary for the protection of those interests 'in a democratic society.'

Measures adopted on grounds of public policy: justification from the procedural point of view
33

According to the third recital of the preamble to Directive No 64/221, one of the aims which it pursues is that 'in each Member State, nationals of other Member States should have adequate legal remedies available to them in

respect of the decisions of the administration' in respect of measures based on the protection of public policy.

34

Under Article 8 of the same directive, the person concerned shall, in respect of any decision affecting him, have 'the same legal remedies... as are available to nationals of the State concerned in respect of acts of the
administration.'

35

In default of this, the person concerned must, under Article 9, at the very least be able to exercise his right of defence before a competent authority
1232

RUTILI v MINISTER FOR THE INTERIOR

which must not be the same as that which adopted the measure restricting his
freedom.

36

Furthermore, Article 6 of the directive provides that the person concerned shall be informed of the grounds upon which the decision taken in his case is based, unless this is contrary to the interests of the security of the State.

37

It is clear from these provisions that any person enjoying the protection of
the provisions quoted must be entitled to a double safeguard comprising notification to him of the grounds on which any restrictive measure has been adopted in his case and the availability of a right of appeal.

38

It is appropriate to state also that all steps must be taken by the Member States to ensure that this double safeguard is in fact available to anyone against whom a restrictive measure has been adopted.

39

In particular, this requirement means that the State concerned must, when notifying an individual of a restrictive measure adopted in his case, give him a precise and comprehensive statement of the grounds for the decision, to enable him to take effective steps to prepare his defence.

The justification for, in particular, a prohibition on residence in part of the national territory
40

The questions put by the Tribunal administratif were raised in connexion with a measure prohibiting residence in a limited part of the national territory.

41

In reply to a question from the Court, the Government of the French Republic stated that such measures may be taken in the case of its own
nationals either, in the case of certain criminal convictions, as an additional

penalty, or following the declaration of a state of emergency.

42

The provisions enabling certain areas of the national territory to be prohibited to foreign nationals are, however, based on legislative instruments specifically concerning them.
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43

In this connexion, the Government of the French Republic draws attention to Article 4 of Council Directive No 64/220 of 25 February 1964 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ, English Special Edition 1963-1964, p. 115) which reads: 'Subject to any measures taken in particular cases on grounds of public policy or public security, the right of residence shall be effective throughout the territory of the Member State concerned.'

44

It is clear that this provision is peculiar to the directive concerned and is exclusively applicable in respect of establishment and the provision of
services and it has not been re-enacted in the directives on freedom of

movement for workers, in particular Directive No 68/360, which is still in force, or, again, in Council Directive No 73/148 of 21 May 1973 concerning establishment and the provision of services (OJ L 172, p. 14), which has meanwhile replaced Directive No 64/220.

45

In the Commission's view, expressed during the oral proceedings, the absence
of this provision in the directives at present applicable to employed persons or to establishment and the provision of services, does not, however, mean that Member States have absolutely no power to impose, in respect of foreigners who are nationals of other Member States, prohibitions on residence limited to part of the territory.

46

Right of entry into the territory of Member States and the right to stay there and to move freely within it is defined in the Treaty by reference to the whole territory of these States and not by reference to its internal subdivisions.

47

The reservation contained in Article 48 (3) concerning the protection of public policy has the same scope as the rights the exercise of which may, under that paragraph, be subject to limitations.

48

It follows that prohibitions on residence under the reservation inserted to this effect in Article 48 (3) may be imposed only in respect of the whole of the national territory.
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49

On the other hand, in the case of partial prohibitions on residence, limited to certain areas of the territory, persons covered by Community law must, under Article 7 of the Treaty and within the field of application of that provision, be treated on a footing of equality with the nationals of the Member State
concerned.

50

It follows that a Member State cannot, in the case of a national of another

Member State covered by the provisions of the Treaty, impose prohibitions on residence which are territorially limited except in circumstances where such prohibitions may be imposed on its own nationals.

51

The answer to the second question must, therefore, be that an appraisal as to whether measures designed to safeguard public policy are justified must have regard to all rules of Community law the object of which is, on the one hand, to limit the discretionary power of Member States in this respect and, on the other, to ensure that the rights of persons subject thereunder to restrictive measures are protected.

52

These limitations and safeguards arise, in particular, from the duty imposed on Member States to base the measures adopted exclusively on the personal conduct of the individuals concerned, to refrain from adopting any measures in this respect which service ends unrelated to the requirements of public policy or which adversely affect the exercise of trade union rights and, finally, unless this is contrary to the interests of the security of the State involved, immediately to inform any person against whom a restrictive measure has been adopted of the grounds on which the decision taken is based to enable him to make effective use of legal remedies.

53

In particular, measures restricting the right of residence which are limited to part only of the national territory may not be imposed by a Member State on nationals of other Member States who are subject to the provisions of the Treaty except in the cases and circumstances in which such measures may be applied to nationals of the State concerned.

Costs

54

The costs incurred by the Government of the French Republic, the Government of the Italian Republic and the Commission of the European
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Communities, which
recoverable.

have submitted observations

to the

Court, are not

55

As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the Tribunal administratif,
Paris, the decision on costs is a matter for that court.

On those grounds,
THE COURT

in answer to the questions referred to it by the Tribunal administratif, Paris, by judgment of 16 December 1974, hereby rules: 1. The expression 'subject to limitations justified on grounds of public policy', in Article 48 concerns not only the legislative provisions adopted by each Member State to limit within its territory freedom of movement and residence for nationals of
other Member States but concerns also individual decisions

taken in application of such legislative provisions. 2. An appraisal as to whether measures designed to safeguard public policy are justified must have regard to all rules of Community law the object of which is, on the one hand, to limit the discretionary power of Member States in this respect and, on the other, to ensure that the rights of persons subject thereunder to restrictive measures are protected. These limitations and safeguards arise, in particular, from the duty imposed on Member States to base the measures adopted exclusively on the personal conduct of the individuals concerned; to refrain from adopting any measures in this respect which service ends unrelated to the requirements of public policy or which adversely affect the exercise of trade union rights and, finally, unless this is contrary to the interests of the security of the State involved, immediately to inform any person against whom a restrictive measure has been adopted of the grounds on which the decision taken is based to enable him to make effective use of legal remedies. In particular, measures restricting the right of residence which are limited to part only of the national territory may not be imposed by a Member State on nationals of other Member
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States who are subject to the provisions of the Treaty except in the cases and circumstances in which such measures may be applied to nationals of the State concerned.

Lecourt

Kutscher

Donner

Mertens de Wilmars

Pescatore

Srensen

Mackenzie Stuart

Delivered in open court in Luxembourg on 28 October 1975.

A. Van Houtte

R. Lecourt
President

Registrar

OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 14 OCTOBER 1975 1

Mr President, Members of the Court,

ruling and in considering them the Court will need to give an interpretation of this exception to the principle of
freedom of movement for workers within

Introduction

the Community.

The present case takes its place in the line of precedents introduced by the two recent judgments of this Court of 4 December 1974 in Van Duyn (Case 41/74 [1974] ECR 1337) and of 26 February 1975 in Bonsignore (Case 67/74 [1975] ECR 297). It affords the Court an opportunity to
define more clearly the outlines of the concept of public policy contained in

The first question asks whether the expression 'subject to limitations justified

on grounds of public policy' concern only the legislative decisions which each
Member State has decided to take in

order to limit, on its territory, freedom of

movement and of residence for nationals
of other Member States.

Article 48 (3) of the Treaty establishing the European Economic Community.

The Tribunal administratif, Paris, has

The second, more fundamental, question is concerned with the actual significance

of the concept of public policy; the French court is in fact asking what precise meaning is to be attributed to the

referred two questions for a preliminary

1 Translated from the French.

word 'justified'.

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